Hussani (Migration) - [2025] ARTA 1199

HUSSANI (MIGRATION) [2025] ARTA 1199 (2 JULY 2025)

DECISION AND
REASONS FOR DECISION
Applicant:Mr Sayed Sekandar Hussani
Visa Applicants:  Mr Syed Namatullah
Mr Syed Ezatullah
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2116744

Tribunal:K. Raif
Place:Sydney
Date:2 July 2025
Decision:The Tribunal sets aside the decision under review with respect to the first named visa applicant and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
· cl 101.213 of Schedule 2 to the Regulations; and
· cl. 101.221(2))(b) of Schedule 2 to the Regulations
The Tribunal affirms the decisions not to grant the second named visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 02 July 2025 at 12:42pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – study requirements – full-time study after completing high school – discrepancies in study histories, overlapping dates, repeat study, security situation and COVID closedown – verification checks – medical report – second applicant’s mental health not to level of incapacity – decision under review remitted for first applicant and affirmed for second applicant
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), (2), 101.221(2)(b)
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 October 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants are nationals of Pakistan, born in January 1997 and May 1995. They applied for the visas on 13 May 2020. The delegate refused to grant the visas on the basis that cl 101.213 was not met because the delegate was not satisfied the visa applicants met the study requirements. The sponsor (the review applicant) seeks review of the delegate’s decisions.
The review applicant appeared before the Tribunal on 1 May 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner Ms Bibi Mehtab. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first named visa applicant and affirmed in relation to the second named visa applicant.
Relevant law
At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hussani (Migration)

Details

AGLC: Hussani (Migration) [2025] ARTA 1199
Case: [2025] ARTA 1199
Decision Date: 2 July 2025

CaseChat Overview and Summary

In the case of Hussani, the applicants sought a Child (Migrant) (Class AH) visa, specifically subclass 101, for their children. The dispute arose due to discrepancies in the applicants' study histories, including overlapping dates and instances of repeating studies. Additionally, concerns about the security situation in the home country and the impact of COVID-19 lockdowns were considered. The applicants also raised issues about the adequacy of verification checks and the relevance of a medical report concerning the mental health of one of the applicants. The matter was brought before the Administrative Appeals Tribunal.

The primary legal issues before the court involved whether the first applicant met the criteria for a Subclass 101 visa, considering the educational history and other relevant factors. For the second applicant, the court had to determine whether the mental health condition met the threshold of incapacity that would disqualify them from obtaining the visa. Additionally, the court needed to assess the adequacy of the Department's verification checks and the relevance of the medical report.

The Tribunal found that the first applicant met the criteria for a Subclass 101 visa, primarily due to meeting the study requirements and other eligibility factors. However, the second applicant did not meet the criteria, as their mental health condition did not reach the level of incapacity that would disqualify them from obtaining the visa. The Tribunal also noted that the Department's verification checks were adequate and that the medical report was relevant but not dispositive. Consequently, the Tribunal set aside the decision under review for the first applicant and remitted the application for reconsideration. For the second applicant, the Tribunal affirmed the decision not to grant the visa.

The final orders of the Tribunal were to set aside the decision under review for the first applicant and remit the application for reconsideration, with the direction that the first applicant meets the criteria for a Subclass 101 visa. For the second applicant, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are met by the first named visa applicant but are not met by the second named visa applicant. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117) by the second named applicant. DECISION The Tribunal sets aside the decision under review with respect to the first named visa applicant and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.213 of Schedule 2 to the Regulations; and·cl. 101.221(2))(b) of Schedule 2 to the Regulations The Tribunal affirms the decisions not to grant the second named visa applicant a Child (Migrant) (Class AH) visaDate(s) of hearing 1 May 2025 Representative for the Applicant: Mr Ramzan Ali

Ratio Decidendi

Legal Principle Established

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